Arizona probate is a judicial proceeding through which a decedent's will is validated, the decedent's creditors are paid, and the decedent's separate property assets are distributed to those specified in the decedent's will.
When Is Probate Required in Arizona?
Arizona probate is required if, at the time of death, the decedent was domiciled in the State of Arizona or owned property located in Arizona.
What Types of Assets Are Subject to Arizona Probate?
Some types of assets are subject to probate, e.g. cars or personal property, while others are not. Below is a non-exhaustive list of assets that are not subject to probate:
- Real property held in joint tenancy with right of survivorship;
- Real property held in community property with right of survivorship;
- Life insurance;
- Bank accounts held in joint tenancy with right of survivorship;
- Bank accounts held in community property with right of survivorship;
- Individual Retirement Accounts ("IRA");
- Other retirement account governed by ERISA.
What If The Estate is Small?
Arizona's provides a procedure via which estates owning less than $75,000 of personal property or less than $100,000 of real property may administer a probate estate via affidavit whereby the heirs or beneficiaries of a probate estate may agree to collect or succeed to property via personal property affidavit or real property affidavit.
How Can Probate Occur?
In Arizona, there are three types of probate proceedings: i) informal probate, ii) formal probate, and b) supervised probate. The type of proceeding used in a particular probate case depends upon various factors, including but not limited to: conflict regarding the validity of the will, conflict as to who should administer the estate, conflict as to who is a beneficiary of the estate and to what extent, and the complexity of the assets.
What is Informal Probate?
Informal probate is the least complex and least costly type of probate proceeding. In fact, many informal probates do not require in-person, or even telephonic, hearings. The court has very little involvement in the administration of the estate other than in a ministerial capacity to oversee that the proper filings are made. As a result, informal probate is often significantly less expensive than either formal or supervised probate.
What is Formal Probate?
A formal probate proceeding, also called a testacy proceeding, is a judicial proceeding to determine whether a decedent left a valid will. A.R.S. § 14-3401.
Formal probate is required in any of the following situations, including but not limited to: i) if a determination as to heirs is required; ii) if informal probate is unavailable; iii) if a person desires to challenge and informally probated will; or iv) if a will contest is anticipated.
What is Supervised Probate?
Supervised probate in one continuous proceeding as opposed to various separate proceedings, as is the case with both informal and formal probates. Supervised probate is permitted if: i) the court determines that such administration is necessary for the protection of people who have interests in the estate; ii) the court determines that supervised probate is necessary under the circumstances; or iii) the will directs that administration occur via supervised probate. A.R.S. § 14-3502.
What is a Personal Representative?
In order to transfer title to property held in the name of a decedent, someone must be authorized to make such transfers in the stead of the decedent. In many states, particularly on the east coast, the person who is appointed empowered by the probate court to gather the assets of the estate, pay the creditors of the estate, and distribute the assets of the estate to heirs is called an executor or executrix, however, in many western states, such a person is called a personal representative.
Often, the personal representative of an estate is nominated by the decedent in the decedent’s valid will; however, if the decedent does not have a valid will there is a statutory procedure by which a person can be appointed as personal representative.
Who Can Be Appointed As Personal Representative?
A.R.S. § 14-3203(F) provides that the following may not be appointed as a personal representative:
F. A person is not qualified to serve as a personal representative who is:
1. Under the age of majority as defined in section 1-215.
2. A person whom the court finds unsuitable in formal proceedings.
3. A foreign corporation.
A.R.S. 14-3203(A) sets forth the priority of the persons seeking appointment as personal representative:
A. Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
1. The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
2. The surviving spouse of the decedent who is a devisee of the decedent.
3. Other devisees of the decedent.
4. The surviving spouse of the decedent.
5. Other heirs of the decedent.
6. If the decedent was a veteran or the spouse or child of a veteran, the department of veterans' services.
7. Forty-five days after the death of the decedent, any creditor.
8. The public fiduciary.
What Are the Powers of a Personal Representative?
The powers of a personal representative are very similar to those of the owner of the property or interest(s) and are enumerated in A.R.S. § 14-3715.
What Are The Duties of a Personal Representative?
The duties of a personal representative are not listed in any one statute; rather, they arise out of various statutes and include the following duties:
- Gather the assets of the estate (A.R.S. § 14-3709(A));
- Prepare an inventory and appraisement of the estate’s assets (A.R.S. 24-3706(A));
- Provide information to heirs and devisees (A.R.S. § 14-3705);
- Distribute the assets of the estate pursuant to the terms of a valid will or Arizona’s intestacy statute (A.R.S. § 14-3703(A)).
Why Avoid Probate in Arizona?
Probate is often criticized as being too slow or too costly by companies or law firms trying to sell revocable “living” trusts to clients. While this may be true in some extreme cases, it is often not the norm. On the east coast, probate fees can be a significant percentage of the estate’s value; however, this is not the case in Arizona.
How To Avoid Probate in Arizona?
There are various strategies by which a person can structure his/her estate to avoid probate, including holding property in a revocable “living” trust, holding property in joint tenancy, using beneficiary deeds, etc.
Why Not Avoid Probate in Arizona?
Perhaps the single most compelling advantage of probate is the statutory creditor’s claim period because four (4) months after statutorily required publication, all against the estate, which are subject to state law, are forever barred. However, it is important to recognize that claims that are subject to federal law, e.g. federal tax liens, are not so barred.
How Long is Probate in Arizona?
The length of time required for a particular probate can vary substantially, however a probate can not likely be shorter than statutory creditor’s claim period, which is four (4) months.
What If There is No Will?
If a decedent has not left behind any legal documents as tho this disposition of his/her probate estate or entities that own assets that would otherwise be in his her probate estate, Arizona law provides a "default" will, so to speak, via Arizona's intestacy statute, ARS § 14-2101, et seq.
Douglas K Cook is an Arizona probate lawyer with over 40 years of experience as a practicing attorney. Although Douglas K Cook's office is located in Mesa, Arizona, our firm represents clients throughout the Phoenix, Arizona Metropolitan area including the following east valley cities: Scottsdale, Paradise Valley, Tempe, Chandler, & Gilbert.